Kagan the Conciliator

In the days since President Obama nominated Elena Kagan to become the next new justice of the Supreme Court, much has been made of her paltry paper trail and her long-standing reluctance to take forceful stands on controversial legal issues. She’s been described as a brilliant, but blank, slate. “[W]here, precisely, has Ms. Kagan been during the legal whirlwinds of the last few years,” asked The New York Times, in a tartly titled editorial, “Searching for Elena Kagan.”

The expectation that the next justice could be a reliably aggressive political counterweight to the pugnacious conservatism of Antonin Scalia and his ideological ally, Clarence Thomas, was dashed by Obama’s selection of his solicitor general. Some commentators even accused the president of choosing Kagan because — though she’s a short, Jewish woman, and he, obviously, is not — they are alike in outlook and temperament, adept at navigating a world of professional “firsts” by being pragmatic centrists.

Beyond the apparent bitterness of this criticism is a fair question. What does motivate Kagan’s professed love of the law? What are her core political beliefs, and how will they be expressed if she joins the high court? We have a right to expect answers to these questions in her Senate confirmation hearings.

But there’s even a larger question looming here. What sort of court is Obama shaping? The stark ideological differences that have characterized the court’s most recent incarnation — especially as Chief Justice John Roberts tries to lead it ever more to the right — are not the way it has to be. The historical record suggests a different theme. Starting with the famous Marbury v. Madison, which established judicial review in 1803, most of the consequential Supreme Court cases have been decided unanimously or by a lopsided majority.

Many times, this didn’t happen by accident. The unanimity of Brown v. Board of Education was achieved through painstaking persuasion on the part of the justices who wanted to outlaw school segregation. Even the still-contentious Roe v. Wade garnered only two dissenting votes.

There is a powerful role for a justice with strong conciliation skills, and Kagan has those in abundance. As dean of Harvard Law School, she was widely admired for calming the ideologically divided faculty and recruiting noted conservatives. “Given Kagan’s demonstrated success winning over skeptical conservatives at every stage of her career, she seems ideally suited for this role,” one of her admirers, Jeffrey Rosen, wrote in The New Republic.

It is a sign of our times that a judicial nominee can be criticized by both liberals and conservatives for being open-minded and pragmatic. So be it. It’s a sign of Obama’s long-term vision that he is looking far past today’s polarization and seeking to reshape the high court into a venue motivated by progressive realism, one where conciliation and persuasion are once again valued.

The views and opinions expressed in this article are the author’s own and do not necessarily reflect those of the Forward.

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